Greater New York Tin & Tar Roofing Co. v. Goldsmith

Majority

p. 618

GREATER NEW YORK TIN & TAR ROOFING CO. v. GOLDSMITH.

(Supreme Court, Appellate Term.

January 5, 1911.)

Headnote

Contracts (§ 28^[1] )—Existence op Agreement—Evidence.

Plaintiff’s secretary, being called to do certain work, was told to call up defendant, which he did, and was told by him to go ahead with the ' work, and that defendant would send a written authorization to do the same the next day. The following day plaintiff received certain letters confirming the conversation and authorizing the work. At the trial plaintiff’s secretary testified that defendant admitted that he had signed the letters, and they were introduced in evidence. After the work was completed, plaintiff’s secretary called on defendant, demanded payment, and was referred to defendant’s manager, who referred him back to defendant. Defendant agreed to pay, but wanted time. Held to establish a prima facie case of defendant’s liability.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 133-144, 1782-1784; Dec. Dig. § 28.*]

Appeal from Municipal Court, Borough of Manhattan, Sixth District. • x

Action by the Greater New York Tin & Tar Roofing Company against Frederick E. Goldsmith. From a judgment dismissing thezcomplaint, plaintiff appeals.

Reversed.

Argued before GIEGERICH, BRADY, and GAVEGAN, JJ.

Abraham Henig, for appellant.

Henry J. Goldsmith, for respondent.

The uncontradicted evidence in this case is that on or about May 11, 1910, one Jacobson, the secretary and treasurer

p. 619

-of the plaintiff company, received a telephone message to go to Ft. ■ George and do some repairing. He went there and had a conversation with a Mr. Bernstein, with the result that the plaintiff was employed to repair the roof of a building known as the “Old Mill” at Ft. George. After the contract was made, Jacobson asked Bernstein who would "be responsible for the bill, and in answer to this inquiry was instructed by Bernstein to call up the defendant in the Park Row Building, which he did and talked to a person there who said he yras the defendant. This conversation was to the effect that plaintiff should go ahead with the work, and he (defendant) would send a written authorization to - do the work the next day. On the following day the plaintiff received two letters, confirming the conversation and authorizing it to do the ■ work.

At the trial Jacobson testified that defendant admitted that he had signed these letters, and they were received in evidence. When the work was completed, the plaintiff’s secretary called on defendant, demanded payment, and was referred by him to his manager, Bernstein, who referred him back to defendant. The defendant agreed to pay plaintiff’s claim, but wanted time. Upon this state of the evidence, the trial justice dismissed the complaint, stating that plaintiff “should sue Bernstein.”

We are at a loss to understand what the learned trial justice based "his decision on, as the plaintiff clearly made out a prima facie case on the uncontradicted evidence. The dismissal of the complaint was error. Lomer v. Meeker, 25 N. Y. 361 .

Judgment reversed, and new trial’ ordered, with costs to appellant to abide the event. All concur.

Cases cited

Lomer v. Meeker 25 N. Y. 361 N.Y. p. 619